June 29th marks the 15th anniversary of the Supreme Court’s decision in Planned Parenthood of Southeastern, Pennsylvania v. Casey. At the time, the decision was a major disappointment for the right to life movement. The Supreme Court refused to overturn Roe v. Wade despite the fact that in the previous 12 years, presidents elected with the enthusiastic support of much of the pro-life movement had appointed five new justices to the Supreme Court. However, the news was not all bad for pro-lifers that day. In fact, the Casey decision granted pro-life movement the ability to make greater incremental progress at the state level, progress that continues to this day.
Indeed, the Planned Parenthood v. Casey decision involved Pennsylvania’s “Abortion Control Act.” which was originally passed in 1982 and later amended with the signature of Governor Robert P. Casey in 1989. It was one of the most ambitious pieces of state level pro-life legislation passed to that date. The Abortion Control Act consisted of a number of incremental pro-life laws including a parental-consent law, a spousal notification law, and a 24 hour waiting period. It also included an informed consent law, which required that information about fetal development, health risks, and sources of support for single mothers be given to women seeking abortion.
The Casey decision marked the first time that the Supreme Court actually reconsidered their findings in Roe v. Wade. And in many respects, the Casey decision succeeded in weakening Roe. The Roe v. Wade decision originally established a trimester framework, which would allow for greater state regulation of abortion in later trimesters. However, the health exemptions that the Supreme Court required in Roe’s companion case Doe v. Bolton, placed a serious imposition on the ability of states to place effective legal restrictions on abortion.
However, in Casey the Supreme Court abandoned this trimester framework. They instead adopted a doctrine of “undue burden” which allowed for state regulation as long as it did not pose an “undue burden” to the woman seeking an abortion. As such, the Casey decision actually upheld most of the provisions included in Pennsylvania’s Abortion Control Act. The parental-involvement law, the waiting period, and the informed consent law were all upheld. Only the spousal notification requirement was struck down.
Regardless, the pro-life movement was unimpressed. The National Right to Life Committee released a statement saying that the decision was a “loss for unborn children and a victory for pro-abortion forces.” Similarly, National Review criticized the decision saying it “perpetuated the current chaos.” They went on to call the plurality opinion authored by Justices O’Connor, Souter, and Kennedy “cowardly.”
Why was there such hostility to the decision? First, many pro-life groups honestly thought that the Supreme Court Justices appointed by President Reagan and President Bush were going to overturn Roe v. Wade. As such, any decision that fell short of a full reversal was bound to be disappointing. Perhaps more importantly, many found the decision somewhat difficult to interpret. The phrase “undue burden” is used little in jurisprudence and many in the pro-life movement were unsure how this would be interpreted with regard to pro-life legislation.
However, in subsequent years the “undue burden” clause has been interpreted by most courts to allow for greater state regulation of abortion. Prior to the Casey, the only pro-life laws that were consistently upheld by the courts were parental involvement laws and public funding restrictions. After Casey pro-lifers at the state level had more legislative options. The pro-life movement could pass informed consent laws. States could also pass waiting periods, and in some states, partial birth abortions were found to be constitutional prior to the Supreme Court’s decision in Stenberg v. Carhart in 2000.
As such, the Casey decision coupled with the sizeable gains that Republicans made in the state legislatures during the 1990s have resulted in a surge of state level pro-life laws. Since 1992, 16 more states have enacted parental involvement laws, 29 more states have passed informed consent laws, and 26 more states have enacted waiting periods. More importantly, since the Casey decision, the number abortions performed in the United States has declined every year except for one. Overall, the number of abortions has declined by 20 percent since 1990. My research and the research of other social scientists indicates these state level pro-life laws have played a significant role in America’s abortion decline.
For the past 34 years, the pro-life movement has worked tirelessly to protect the unborn. Progress has not come as quickly many would like. However, starting in the 1990s, pro-lifers finally began to see some real dividends from their years of political involvement. More pro-life laws were enacted because of both the electoral success of pro-life legislative candidates and the judges appointed by pro-life presidents. Furthermore, it seems likely that one of President Bush’s legacies will be a Supreme Court that is more sympathetic to state level regulation of abortion. As such, even though the Casey decision was a disappointment to many in the pro-life movement back in 1992, the legislative and political gains made in Casey’s aftermath should provide the right to life movement with a great deal of optimism for the rest of this decade and beyond.
– Michael J. New is an assistant professor of political science at the University of Alabama.